Bloggings On Immigration Law And Policy

Just got word that DHS and the plaintiffs in the suit challenging the E-Verify federal contractor rule agreed on the extension of the applicability date of the E-Verify contractor rule until May 21, 2009 in order to give the new President time to review the rule. This is longer than the 60 day hold called for under the executive order I wrote about last week.

Have you noticed an uptick in comments from anti-immigrant posters you've never seen here before? There's a reason.

A friend of mine forwarded me the latest email newsletter from the nice folks at the Federation for American Immigration Reform and they have a little article discussing the Gillibrand Senate appointment mentioning how pro-immigration groups were reacting with concern over Ms. Gillibrand's record. I happened to have been one of the first to write about the Congresswoman's immigration record and it caught their attention:

Last week's confirmation of Senator Hillary Clinton as Secretary of
State created a vacancy in the United States Senate. Even before
Governor David Paterson (D-NY) could officially announce that he was
appointing Congresswoman Kirsten Gillibrand (D-NY) to fill the vacated
Senate seat, the open-borders lobby came out in full force in
opposition to the Governor's choice. (Rochester Homepage,
January 24, 2009). Greg Siskind, a prominent pro-amnesty blogger wrote
that "her appointment will be extremely disappointing to the
pro-immigrant community." Siskind's blog, widely distributed on the
pro-amnesty email alert network, warns that, "Unless Gillibrand
dramatically changes her views on immigration, she will very likely
face a primary opponent when her seat is up." (Siskind's Blog Post).

Strange politics here. President Bush's Homeland Security Department issued an order last November when the story broke that then Senator Obama's aunt was in the country illegally and subject to deportation. Now the President is seeking to scrap the directive presumably to avoid any appearance of a conflict of interest.

I've just blogged about the new study released by UCLA's Dr. Raul Hinojosa-Ojeda on the impact of a legalization program on economic recovery in the US. Dr. Hinojosa-Ojeda is a native of Mexico and was raised in Chicago. He received a bachelors, masters and Ph.D. at the University of Chicago and is one of the nation's leading scholars on the poligical economy of regional intgrations in different parts of the world. He's written extensively on trade, investment and migration relations between the US, Mexico, Latin America and the Pacific Rim. He's also originator of the idea for the North American created by the US and Mexican governments in 1994.

UCLA's Dr. Raul Hinojosa-Ojeda, Executive Director of the university's North American Integration and Development Center, makes the case that a legalization program on a large scale will be an economic boon to the country:

Legalization of the nation’s undocumented workers is now an economic necessity, as well as amoral and civil rights imperative. Legalization increases short-term incomes, job creating consumption and net tax revenues in the low wage segments of the labor market, as well as sets the long-term foundation for an expanding middle class and a more sustainable economic recovery. The experience of the Immigration Reform and Control Act of 1986 (IRCA) is very instructive in this regard, producing both wage and consumption gains, and enhanced tax-revenue collection in the midst of a recession of the late 1980’s and early 1990’s, as well as decades of very high rates of educational, home and small business investments by newly legalized families. If Congress and President Obama legalized the current 10-12 million undocumented persons in the U.S. an economic stimulus of $30-36 billion in personal income, 750,000-900,000 new jobs, and $4.5 to $5.4 billion in net tax revenue would result!

Here here for another grown-up saying what the politically tone deaf in the Republican Party don't seem to want to hear - if the party doesn't re-invent itself as a pro-immigration party, it will spend many years in the minority. Former Republican National Committee Chair and Bush Cabinet Secretary Jim Nicholson reminds his party that Hispanics are a natural constituency based on many of their views on social and economic issues. But immigration is something that they will not be able to look past.

The news that Microsoft will be laying off 5,000 workers is certainly troubling since the company has traditionally been very reluctant to release folks and only a year ago was discussing how they had 5,000 openings they could not fill.

The anti-H-1B Senator Charles Grassley has now jumped in to the fray demanding that Microsoft start firing its H-1B workers before any "similarly qualified" workers lose their jobs. It's hard not to see the appeal of the argument - after all, shouldn't we look out for our own workers before protecting jobs for those who are just here temporarily?

One problem with this would be the potential violation of federal anti-discrimination laws. Another is assuming that workers are fungible and you can just swap in and swap out workers like light bulbs. Perhaps you have an H-1B worker with critical skills that has been working on a project for two years and has a unique knowledge that would take months for a new person to learn? Would it make economic sense to fire the person? Microsoft doesn't need Big Brother looking over its shoulder reviewing the extremely perilous process of coming up with the precise workforce that will allow it to steer through the treacherous economic storm we are all facing.

Of course, H-1B employees WILL be losing their jobs. Microsoft has already said so:

In response to a query about Grassley's letter, Microsoft said the initial layoffs include foreigners working here on visas.

"The initial reductions we announced affect employees in a number of
business units, and a significant number of the affected employees are
foreign citizens working in this country on a visa," said company
spokesman Lou Gellos. " ... For many of the employees here on a visa,
being laid off means that they have to leave the country on very short
notice, in many cases uprooting families and children."

The marketplace will deal with Senator Grassley's concerns as it has in prior recessions. H-1Bs are expensive - often $6000 or more when you factor in legal fees and hefty government filing fees. That is money most companies would rather spend elsewhere. H-1B applications take time - often at least six months of waiting for a visa number to become available after filing an application. They're a pain in the neck from a bureaucratic standpoint - posting requirements, public access files, representations to the US government, etc. The typical communications issues one would expect with foreign workers often add additional challenges. And you have uncertainty regarding the long term prospects for retaining the employee since getting a green card is often an expensive proposition with no guarantees of success.

In past recessions - and this is my third since I began practicing nearly two decades ago - we have seen a substantial drop in the number of H-1B petitions filed. The largest users of H-1B numbers - the IT consulting companies headquartered in India - are presumably going to be wise enough to save millions of dollars in filing fees and not bother petitioning for workers for which there are not likely to be assignments in the US. In any case, I will be extremely surprised if we don't see a huge drop in filings on April 1st.

Bosnian-born Amer Delic had a great Australian Open losing in the third round to defending champion Nova Djokovic of Serbia. Delic won the NCAA Singles Championship in 2003 while representing the University of Illinois and has played in a number of major tournaments over the last few years. Delic has played in all four Grand Slam tournaments and this year's Australian Open represents his best performance yet.

The House has included a provision extending the E-Verify program from March 6, 2006. The House Appropriations committee has not released the text of the amendment yet so I'm not able to clarify the exact period of extension. The press release from the committee linked above says it is extended for five years. The press release from the amendment sponsor, Rep. Ken Calvert (R-CA), says the extension is four years. It's possible that they are both correct and the extension is until September 30, 2013, five years from the expiration last year.

A second amendment requiring E-Verify be used by all companies receiving stimulus funds was also passed. The amendment was offered by Rep. Jack Kingston (R-GA).

The beautiful Spanish actress Penelope Cruz was nominated for her second Academy Award today for her supporting role in the recent Woody Allen film Vicky Christina Barcelona. Ms. Cruz was nominated a couple of years ago for her performance in the Spanish film Volver.

Moving from Conservative District to Statewide Office,
Appointee Must Recognize Policy & Political Demand for Comprehensive
Immigration Reform in 2009

Washington, DC – Below is a
statement from Frank Sharry, Executive Director of America’s Voice in response
to Governor David Paterson’s appointment of Congresswoman Kirsten Gillibrand
(D-NY) to the U.S. Senate:

“Senator-designate Gillibrand of New
York has a troubling record on immigration. As a
member of the House of Representatives, she supported policy proposals aimed at
driving immigrant workers and families further underground without offering a
practical solution to the presence of some 12 million hard working immigrants
without immigration papers in the United States.

“We understand that as a U.S.
representative she represented a conservative district, but now she will be
representing an entire state, which contains one of the most vibrant and
dynamic immigrant populations in the nation.” She is being appointed to
fill the shoes of former Senator Hillary Clinton, who as a Senator who was a
strong champion of comprehensive immigration reform, and who as a presidential
candidate won strong support from Latino voters. Let’s recall that the
unprecedented turnout of Latino and new American voters, most of whom rejected
the GOP in part because of its stance on immigration reform, was a major factor
in the election of President Obama and the expansion of Democratic majorities
in Congress. It is also worth remembering that swing voters in swing
districts rejected enforcement-only candidates and support comprehensive reform
with an earned citizenship component.”

“Most importantly, President Obama and the 2008
Democratic Party platform promised to tackle comprehensive
immigration reform during the Administration’s first year in office. Voters
in New York, Latinos nationwide, and Democratic leadership will be looking to
Senator Gillibrand to stand with the President, to stand with the Democratic
Party, and to stand with the majority of New Yorkers to support practical and
humane immigration reform.”

I'm proud of my former hometown (though I'm there often enough for work that it still is a home away from home). The city has been known for its hospitality over the years - it once actually garnered an award for the friendliest city in America. But in recent years, it's hostile treatment of immigrants has been making national headlines. That largely stems from the city's aggressive sheriff and the use of its police force as immigration agents.

The city made headlines again in recent months for its attempt to pass a measure that would require require all city business be conducted in English.

The proposal was controversial enough to garner the warning of another large city that passed an English-only amendment - Miami. The Miami Herald last week ran this editorial warning the voters of Nashville about a host of unintended consequences that city experienced and why voters eventually decided to kill the requirement. I grew up in Miami and remember the chaos that surrounded that referendum.

So yesterday voters in Nashville could have voted to continue down the same anti-immigrant path. Instead, they soundly rejected the proposal by a 56-44 percent margin.

I'm also glad to see the main sponsor of the proposal taking a civil tone in defeat:

On the losing side was Eric Crafton, a Metro Councilman from Bellevue.
Crafton had pushed a measure to make English the official language of
Metro government for two years. After a failed attempt to pass a
Council bill, Crafton gathered signatures of Davidson County voters.

His
first attempt, which would have put the proposal on the November
presidential election ballot, was disallowed by the Davidson County
Election Commission. Crafton went back to the drawing board and
gathered more signatures to force the special election.

In
defeat, Crafton promised to abide by the “wisdom of the voters,” adding
that he was glad the issue was finally decided at the ballot.

“I
think it’s been a net-positive for Nashville,” Crafton said. “We’ve had
a discussion, the people have decided. I always said I would support
the collective wisdom of the citizens and they gave a clear statement
tonight.”

New York's pro-immigration community has only known about the nomination for a few hours, but they've swung in to action to put the brakes on this disastrous pick. The Orange Country Register's Dena Bunis is the first to report.

A few months back I blogged on the great film The Visitor, one of the better immigration-themed movies of recent years. Now one of its stars, Richard Jenkins, was honored today with an Academy Award nomination.

Now that Caroline Kennedy has dropped out of the running to replace Hillary Clinton in the Senate, speculation has now turned to Congresswoman Kirsten Gillibrand from the upstate New York area. Andrea Mitchell of NBC is reporting that she's going to be announced tomorrow as the new Senator.

Gillibrand has a poor record on immigration and her appointment will be extremely disappointing to the pro-immigration community. All the more surprising is that it comes from a Governor who presumably wants to appoint someone who is going to appeal to one of the most pro-immigration constituencies of any state in the country. Unless Gillibrand dramatically changes her views on immigration, she will very likely face a primary opponent when her seat is up and Republicans could have a much better chance to take this seat. Here is how Gillibrand describes her immigration views:

Our immigration system is broken and hard-working Americans often bear
the brunt of the federal government’s failure to secure our borders and
provide adequate protections for the American worker and the shrinking
American Middle Class. I believe the first step to fixing our
immigration system is to stop the flow of illegal immigration. This can
be accomplished by securing the Southern border, enforcing the
employment laws on the books and ensuring that our farmers and
businesses have the adequate number of legal workers after they have
exhausted their search for American workers. I am firmly against
providing amnesty to illegal immigrants. In my first year in Congress,
I passed legislation on the floor of the House of

In addition, I am a sponsor of the SAVE Act, which will hire 8,000 new
Customs and Border Patrol agents, while utilizing new technology and
fencing along the border. I have also sponsored the Legal Employee
Verification Act, which would require all employers to verify, through
the Social Security Administration, that their employees are legal. In
addition,

I support reforming and streamlining the U.S. Citizenship and
Immigration Services (USCIS) so that the extraordinary casework backlog
will be addressed within two years. This is especially important for
the thousands of farmers in our district who need legal workers. I am
confident that Congress can enact reform without providing amnesty to
illegal immigrants. This is a national and economic security issue for
our country and I am committed to fighting for the American worker.

NumbersUSA, the anti-immigration group, gives her a high grade for her voting record because Gillibrand's rhetoric has been backed up by her votes.

A few observations. First, we're going to be keeping Congresswoman Lofgren as chair and that should be seen as good news. Lofgren has gained a reputation as someone who can work with Republicans and that's likely why she got the Ethics Committee chair as well as the Immigration Subcommittee.

The Democrats bigger majority has translated into a new seat for them and one less seat for the Republicans. Charles Gonzalez and Pedro Pierluisi are new members of the committee on for the majority party.

The Republicans, aside from only having six members of the committee compared to ten for the Democrats, have several new faces.

Jason Chaffetz replaces Chris Cannon, previously the sole pro-immigration member on the Republican side. Chaffetz beat Cannon in the Republican primary for his Utah seat largely on an anti-immigration platform. Also new are Ted Poe of Texas and Gregg Harper of Mississippi who, like Chaffetz, are also freshmen. Gone are Louie Gohmert of Texas, Bob Goodlatte of Virginia and Randy Forbes of Virginia.

Unless Poe and Harper surprise us, it is fair to say that the Republicans on the Committee are now 100% anti-immigration, something that will surely upset moderate members of the GOP who now realize that their party will be in a permanent, shrinking majority as they further alienate Hispanic voters. Of course, with only six out of sixteen votes, they can make noise, but can't really do much to stop the Democrats if their counterparts are relatively united on an issue. And that may be very important this year.

This is not a surprise. The new Administration will continue to take a tough line on employers who don't heed US immigration laws. There may not be as many raids as we've seen, but expect that enforcement will come in other areas - I-9 audits, strengthening E-Verify, barring access to tax breaks and government contracts, etc. The stimulus bill in the House has this clause:

(2) FIRMS IN VIOLATION OF IMMIGRATION LAWS.—

No loan guarantee may be made under thissection for a loan to any entity found, based on adetermination by the Secretary of Homeland Security or the Attorney General to have engaged in apattern or practice of hiring, recruiting or referringfor a fee, for employment in the United States analien knowing the person is an unauthorized alien.

The hope is, of course,that we'll get a comprehensive immigration package this year so that employers who want to go through the proper legal channels to get needed workers will have the ability to do so (something that is generally not the case under the current system).

Janet Napolitano has been sworn in as the new Secretary of Homeland Security and on her first day in office ordered reports from agency chiefs at DHS on how their agencies work to achieve the mission of DHS.

President Obama today ordered federal agencies to hold off publishing new regulations until the new White House has an opportunity to first review them. I'm not aware of any rules the Bush folks didn't get to during its regulatory dump over the last few months, but the order also had one interesting additional item for agency heads:

Consider extending for 60 days the effective date ofregulations that have been published in the FederalRegister but not yet taken effect, subject to theexceptions described in paragraph I, for the purposeof reviewing questions of law and policy raised by thoseregulations. Where such an extension is made for thispurpose, you should immediately reopen the noticeand comment period for 30 days to allow interested partiesto provide comments about issues of law and policy raisedby those rules. Following the 60-day extension:

a. for those rules that raise no substantial questionsof law or policy, no further action needs to be taken;and

b. for those rules that raise substantial questions oflaw or policy, agencies should notify the OMB Directorand take appropriate further action.

The first item that comes to mind is the E-Verify federal contractor rule which is not scheduled to take effect until next month.

About The Author

Greg Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at gsiskind@visalaw.com

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.